Barnsdall Oil Co. v. Ohler

• Decision Date: 01 June 1915
• Docket Number: Case Number: 6287
• Citation: 150 P. 98,48 Okla. 651,1915 OK 397
• Parties: BARNSDALL OIL CO. v. OHLER.
• Court: Oklahoma Supreme Court

1915 OK 397

150 P. 98

48 Okla. 651

BARNSDALL OIL CO. v. OHLER.

Case Number: 6287

Supreme Court of Oklahoma

Decided: June 1, 1915

Syllabus

¶0 1. MASTER AND SERVANT--Injuries to Servant--Safe Place to Work--Scaffolding. If a person is sent to work upon a tubing board, already fixed and placed in a derrick, or if he is sent to use a tubing board in his work which the master undertook to install, or where the master undertook, either in person or through an employee, to supervise the installation, the rule would be otherwise, but where the master does not himself undertake the duty of furnishing such a structure as a tubing board, but merely supplies suitable materials and reasonably competent fellow servants by which it may be constructed, and reasonably adapted to the work, and the duty of installing the tubing board as an appliance for use is intrusted to or assumed by the workmen themselves, the employer is not answerable to one of the workmen for the negligence of himself or of a fellow servant in the construction of the tubing board.

2. SAME--Material-- Duties of Master and Servant. It is well settled that where a master has provided an adequate and readily accessible stock of appliances in good condition, from which to make a selection, and the imperfection of the instrumentality selected therefrom was, or ought to have been, apparent to the servant who selected it, the master cannot be held responsible for injuries which were sustained by the instrumentality, whether the sufferer be the servant himself who made the selection, or a coemployee.

3. SAME. Limits of a master's liability for an injury caused by a scaffold or other appliance constructed or adjusted as a part of the work are determined upon the hypothesis that it is his duty, in the alternative, "to furnish either a suitable platform or scaffold for doing the work that the plaintiff and his coemployees were required to do, or proper and suitable materials for the construction of such a platform."

4. SAME--Negligence of Fellow Servants. The rule is that where the employee in authority, representing the master, undertakes to plan a scaffold and to superintend its construction by ordinary unskilled laborers, such person thinks for the master, and the servant who uses it does not take the risks of defects or design. If, however, the master delivers to such laborers materials well suited to that purpose, leaving it to their discretion to devise the plan of so simple a contrivance as they proceed with the work, a servant injured in its use cannot recover from the master, and this is true whether the defect was of plan or construction. In either case the injury would be imputable to the negligence of fellow servants.

4. SAME--Question for Jury--Contributory Negligence. Under a constitutional provision requiring it, contributory negligence is a question which the court must never decide, but it must be submitted to the jury for their determination, but contributory negligence on the part of the plaintiff presupposes negligence on the part of the defendant. Before the question of contributory negligence on the part of the plaintiff can arise, negligence of the defendant must first be shown. If there is no negligence upon the part of the defendant shown, and the negligence of the plaintiff only, or of his fellow servant, caused the injury, then it is primary, not contributory, negligence on his part, and there can be no case to go to the jury, where a state of facts is presented as in the case at bar, where the primary negligence was caused by the plaintiff or his fellow servant.

Error from District Court, Osage County; R. H. Hudson, Judge.

Action by G. B. Ohler against the Barnsdall Oil Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions to enter a judgment sustaining defendant's demurrer to the evidence.

Sherman, Veasey & O'Meara, for plaintiff in error.

H. B. Martin and A. F. Moss, for defendant in error.

MATHEWS, C.

¶1 This action was instituted for the recovery of damages for personal injuries. The parties hereto will be designated as they appeared in the lower court. The petitioner, in substance, alleges that he was employed by defendants as a member of a tubing crew, who were engaged in pulling tubing from oil wells and at the time of the injury were putting back tubing in an oil well, and that in so doing it was necessary for him to stand on a platform called a tubing board, constructed on the derrick about 40 feet above the derrick floor. Plaintiff further alleged that defendant was negligent in the construction of said derrick and tubing board in nailing a timber or board across the tubing board so that the end thereof extended about 18 inches over and beyond the edge of the tubing board; that while engaged in putting tubing in said well, as an employee of defendant, with other employees, they used a heavy wire line lifting and hoisting said tubing, which line ran through a pulley at the top of the derrick, and that while engaged in lowering the tubing into the well, the said line caught over the projecting end of said board, and when the weight of the tubing pulled said line taut, this caused the tubing board upon which plaintiff was standing to be pulled off the girt around the derrick upon which one end of the tubing board was resting, which caused plaintiff to fall to the floor of the derrick, a distance of 40 feet, from which he received severe injuries. The petition contained no statement as to who constructed and installed the tubing board, but merely cites that defendant and its employees did. As far as the necessities of this opinion require, we will only set out the fifth paragraph of defendant's answer, which is as follows:

"For additional defense to plaintiff's petition the defendant says that plaintiff's injury, if any he received, was the result of a concurrent negligence of himself and of those with whom he was working as his fellow servants in the same line of work, and his injury, if any he received, was attributable entirely to his own want of care and to the want of care of those who were, at the time, engaged with him in the same line of labor."

¶2 Plaintiff met this answer with a denial, and at the trial a verdict was returned in favor of plaintiff, and from the judgment upon this verdict defendant appealed to this court.

¶3 There is but one vital, controlling point in this case. The theory upon which the plaintiff launched his petition, and which the trial court adopted and upon which he submitted the case to the jury, was that the tubing board upon an oil derrick was a permanent part thereof and a completed instrumentality and a place in which to work, and that it was a personal, primary, nonassignable, nondelegable, positive duty of the defendant, under such conditions, to furnish plaintiff, while working for defendant in pulling tubing and replacing the same when it became necessary for him to use the tubing board, a completed instrumentality and a reasonably safe place in which to work, and that under those conditions defendant could not interpose as a defense its contention that the plaintiff, with other employes of defendant, composing a tubing crew, could not hold defendant liable for a negligent act of plaintiff, or of a fellow servant, in installing the tubing board preparatory to using the same in replacing tubes and rod in the oil well.

¶4 The facts in the case are that the plaintiff, one J. W. Smiley, Less Craig, and another, at the time of the accident, composed what is known as a tubing crew in the employ of defendant. It seems that the way a tubing crew work together is for one of the crew to stand on what is known as the tubing board, in order to handle the upper end of the piping when drawn from the well, and to arrange the upper end of the pipe against the tubing board, and when the piping is being put in the well, he stands on the same tubing board to place the line around the top of the tubing so it can be lowered into the well, the other members of the crew remaining on the ground in various capacities.

¶5 When the tubing crew came to the derrick the day before the accident to pull the tubing, the tubing board was on the sixth girt of the derrick, and it was taken down to the ground and was then by plaintiff and Smiley again hoisted and placed on the fourth girt of the derrick. Smiley and the plaintiff both ascended the ladder to the fourth girt and proceeded to install the tubing board by placing the board so that one end rested on the east and one on the west girt of the derrick, having a play of about four inches on each side of the two girts. In order to brace the tubing board so as to make it secure enough to permit the laying of one end of the drawn piping against it, they then proceeded to nail crosspieces on the top side of the board, two of the crosspieces extending the entire width of the board and back to the legs of the derrick, there being four crosspieces, the plaintiff nailing all of the crosspieces except the west one, which Smiley arranged and nailed, the crosspiece placed on by Smiley extending over and beyond the front end of the tubing board about a foot or 18 inches, and the crosspiece did not exactly coincide with the west girt, but was about two inches to the east of it. It took about 15 minutes to install the tubing board, and then the crew first pulled the tubing, all of the crew being on the ground except the plaintiff, who occupied the tubing board, and attended to the duties of that position as above stated. After the piping had been drawn from the well, when it was being replaced the next day, the plaintiff, on the tubing board, had placed the elevator line around the piping to be lowered, but while the line was slack, in some way it got caught on the projecting portion of the crosspiece nailed on the tubing board by Smiley, and when it was drawn tight by the weight of the piping, which was about 9,000...